Commissioner of C. Ex. vs Virchow Laboratories Ltd.

Bilal Nazki, J.—In this reference, the Tribunal remanded the case back, as according to it, the issue involved before it was whether the material removed by the party was an industrial waste or pure Methanol. The party claimed it was industrial waste whereas the Department claimed it was Methanol. It is the admitted case of the parties that the material is not available as it has been used by the party. However, the learned Counsel for respondent submits that at the appropriate time the material was available, but was not tested. The Tribunal on coming to a conclusion that since the material was not tested for coming to a conclusion as to whether it was Methanol or industrial waste, therefore it remanded the case back and gave the following direction :

"Concurring with the submissions made by both sides and taking into consideration of the facts that the item has not been tested to ascertain the purity level, in line with the order referred to above, this matter is also remanded to the concerned adjudicating authority to examine the matter afresh and to pass an appropriate order in accordance with law on providing an opportunity to the party. All the connected issues are kept open."

Now, it is stated that it is not possible for the concerned authority to dispose of the matter afresh in accordance with the direction of the Tribunal, because the testing of the material is not at all possible as the material is not available. The learned Counsel for respondent, however, submits that the Tribunal did not ask the authorities to test the material. It merely remanded the case on the ground that the material had not been tested. Be that as it may. We dispose of this reference with a direction to the concerned authority to dispose of the matter in accordance with law on the basis of evidence available before it, including the evidence that may now be put before it by the parties. The question of testing would not arise because the material, according to both the parties, is not at all available.

The Reference is accordingly disposed of. No Order as to costs.